January 24, 2010

"State must put 'death' back in death row"

The title of this post is the headline of this new commentary in the Sacremento Bee that is authored by David E. Brown, a former commissioner and chief counsel of California's Parole Board. Here are a few excerpts:

Admittedly, California's death penalty is not perfect and probably could never be reformed to the extent that it could always be applied in a fair and just manner. The problem, however, with California's death penalty is its inability to carry out executions following convictions and sentences. California leads the nation with more than 600 inmates on death row, but only 14 have been executed since the reinstatement of the death penalty in 1978. A person sentenced to death in California is more likely to die of old age or natural causes than to be executed.

The opponents of the death penalty, in calling for its abolishment, ignore the victims of murderers and the right of society to protect itself from future crimes by convicted murderers. There have been cases in California of persons sentenced to death who were subsequently paroled only to murder again. I have personal knowledge of such cases.

As a result of highly publicized murders by murderers released on parole, California voters have consistently voted to support the death penalty. Originally restored by voters' initiative in 1977, every subsequent measure to expand the provisions of the death penalty, most recently the gang-murder special circumstance in March 2000, has been overwhelmingly approved by the voters.

Because of the judicial system's failure to approve executions, the death penalty in California has become a de facto life-without-possibility-of-parole sentence. While California's death penalty is far from perfect, there are some crimes that are so egregious that any punishment less than death would be inadequate as a matter of basic justice. There are also certain situations where the death penalty may be morally required to prevent the taking of an innocent life.

Perhaps the only truly notable aspect of this relatively standard defense of the death penalty is the background of its author. But I am also drawn to this commentary because my Fordham sentencing seminar is about to begin a death penalty unit, and it is intriguing and remarkable how the author of this commentary mixes a melange of traditional death penalty justifications (s well as their obvious counter-arguments) in a few paragraphs.

Incapacitation, democratic theory and retribution all get some understandable attention in this defense of the death penalty by Mr. Brown. But his description of California death sentences as now a "de facto life-without-possibility-of-parole sentence" suggests that his concerns about future crimes by parolees can be handled without executions. Moreover, his initial concession that California's capital system will probably never be applied in a "fair and just manner," would seem to at least partially undercut arguments based in democratic theory and retribution. I would question the claim that California voters support a capital punishment system that necessarily will be applied in an unfair and unjust manner, and I also think most Kantian retributivists who view executions as a matter of "basic justice" would at least worry about whether such basic justice is truly served by a punishment that is distributed in an inherently unfair and unjust manner.

I make thiese point neither to praise or criticize Mr. Brown's commentary in particular, but rather just to note and lament the fact that political and public discourse concerning the death penalty remains so simplistic. I also look forward to seeing what might Fordham students say about this commentary in our seminar.

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Comments

Here is something the lawyer will never say, nor allow to be argued in a court.

1) LWOP is a license to kill better than that of James Bond's. James has to answer to pesky civil service reviews of his extra-judicial executions. Plus, the politicians have other considerations than killing the bad guys, and will second guess James. None of that inconvenience in LWOP. All crimes after the first murder have absolute immunity.

The number of murders in prison is about twice or more the number of executions. So the lawyer is doing a good job of immunizing his rampaging, homicidal maniac client. The murders in prison include a good number of guards, staff, and visitors. This number does not include the much larger number of people who had a pencil stuck in their eyes and survived thanks to modern trauma care (e.g. a guard injured by the lawyer protected terrorist who bombed the WTC in 1993).

2) The cost of keeping a LWOP prisoner is 5 to 10 times that of a regular prisoner. They need private accommodations and special handling and personal services. So any saving from ending death penalty appeals by surrendering to the criminal lover horrible people running the criminal law is nil. Most of prison cost goes to salaries, so this LWOP is left wing, Commie, guard union rent seeking, rather than lawyer rent seeking.

3) The cruelty of LWOP is not clearly less than that of death. The LWOP prisoner will die of natural causes in prison. a) that means, no one dies without spending $1 million on aggressive but worthless end of life care (MD rent seeking); 2) in 90% of cases, as with most of us, the death will be painful, slow over months, humiliating (diapers for the old are not cute); 3) the overwhelming majority of prisoners will not see the light and convert to Christianity or Islam, nor write great prison poetry, nor try to help younger prisoners avoid their mistakes. They will just hang out at taxpayer expense, committing their usual rate of crime, just behind bars.

I have absolutely no doubt that if any student brings up those little points, the professor will cleverly persuade the student of how those are all good things.

"There have been cases in California of persons sentenced to death who were subsequently paroled only to murder again."

This sentence diminishes his credibility. He didn't provide specifics. Exactly who was it that was sentenced to death, and somehow from death row he was paroled?

It sound more like he was sentenced to die, then for whatever reason that sentence was vacated and replaced with a different sentence. Then he was paroled. If this is the case, this is not an indictment of the DP, but rather of some other sentence.

Whatever the case, saying that one has "personal knowledge" without providing specifics usually means that one isn't being honest.

And really, do people really care what "victims" think. Most prosecutors just ignore them unless their whining suits their needs. For good reason: most victims are uneducated and probably have criminal records, themselves.

Posted by: S.cotus | Jan 24, 2010 1:00:38 PM

Retribution is from the Bible, not from Kant, and unlawful in our secular nation. Kant inscrutable BS (his writing is worse than legal writing) is more acceptable than the crystal clear mandates in the Bible. One of its most prominent advocates in lawyer academia is a very devout practitioner of his religion. This is not a coincidence. He refuses to see the connection.

Atheists, like the Supremacy, cringe at this childish and atavistic justification. Why not have the murderer die by the same method as the victim, to complete the symmetry of retribution? No one is advocating that because the argument is a Trojan Horse for prolonged lawyer appellate advocacy.

The Bible is basically Iraqi and Palestinian jurisprudence. Despite poverty, crime rates from victim surveys in the Middle East are low. They may advocate retribution, but they practice incapacitation. The criminal is spoken to with kindness and support on offense One. He gets painful corporal punishment on the subsequent offense. That is well known. What is less well known is that he disappears on the third. So they limit retribution to just a couple of repeat offenses, but have incapacitation as the real crime remedy.

Saddam killed his first victim at age 10. His stepfather talked the police out of searching his room where a hot pistol was under a pillow. Saddam got beat a lot, because he was a busy criminal from early childhood. That he was not executed at the many times the authorities had him in custody resulted in a national tragedy later.

No one has ever discussed the consequences when someone with antisocial personality disorder (evident from the earliest of childhood), gets a hold of national power. The executions of 1000's of people on the chance one might do it, are justified by the prevention of that cataclysmic catastrophe.

Because the prisons have control of the bodies of both the murderer and the victim, they should pay for all injuries by prisoners, and pay the full cost for the murder of regular folks, around $6 million a pop. To deter. Right now, the cost of subsequent injuries and murders, rapes, etc by LWOP people with absolute immunity is borne by the victims, without legal recourse.

The calculus of the cost of the death penalty would change if there were justice for the victims of the immunized LWOP prisoners. Never addressed by the biased lawyer criminal lover running the criminal law. That is a calculation that would change if the pro-criminal government had to pay standard compensation in torts. And exemplary damages have justification if the authorities had scienter and the injury had good foreseeability. They always do, and it always does. To deter.

"Massie pled guilty to 3 separate robberies committed on January 7, 1965, in each case shooting the victim as he left. Mildred Weiss was robbed and killed in her front yard. He was sentenced to death in 1965, but the sentence was commuted to Life by Furman in 1972. Massie was paroled in 1978 and murdererd liquor store owner during an armed robbery 8 months later. Pled guilty and was again sentenced to death. He objected to an appeal, but the California courts required one. The sentence was reversed by the "Rose Byrd" California Supreme Court because his lawyer did not consent to guilty plea. He was found guilty and sentenced to death again in 1989, and eventually waived his final appeals."

http://www.clarkprosecutor.org/html/death/US/massie703.htm

Posted by: Alpino | Jan 24, 2010 6:39:58 PM

Alpino, Brown's article is even more disturbing with your information. I am in complete shock that he did not provide specifics. Now, if you propose that Massie was the case he had "personal knowledge" of, it would seem that Brown was lying. I do not think the country can ever recover from this.

The actual text of even that necessarily biased link (aimed at non-lawyers) even admits that his sentence had been commuted. Thus, he was not on death row (in fact, death row didn't exist at the time). Anyway, Brown's misleading commentary doesn't do much to help his case.

Posted by: s.cotus | Jan 24, 2010 10:57:12 PM

Brown wrote: "There have been cases in California of persons sentenced to death who were subsequently paroled only to murder again". That fits the circumstances of the Massie case. I don't see how Brown was misleading.

Posted by: Alpino | Jan 25, 2010 3:23:05 AM

Can someone from California with knowledge of the innocence project inform us of how many people convicted of murder were later exonerated by DNA or other evidence?

Brown says in the fourth paragraph that California voters have consistently endorsed the death penalty. They would probably vote for slavery if it was on the ballot. These are the people who voted in Arnold.

Doug says that discourse remains simplistic. He is truly correct. The fact that recent Christians have amended the pertinent Commandment from "You shall not kill" to You shall not murder" is one example. When the killing is done in the name of the people of a state perhaps the Commandment should be (especially in the South, or in Southern California): "Y'all shalt not kill!" So, I will leave it simplistic.

In my experience, the prosecution sometimes gets it wrong and sometimes they get it wrong on purpose.

Posted by: mpb | Jan 25, 2010 6:34:03 AM

MQB: By your warped logic, all transportation should stop until the "problem" of accidents is completely solved. That includes walking. There are 20 times as many pedestrian deaths as there are total executions, including those of the few criminals who are guilty.

In transportation accidents, without any due process or even a by your leave, innocent people are executed by having metal bash or slice their bodies in butchery type approach. Many survive in agony with multiple fractures and jagged incisions until death mercifully takes them.

This innocence excuse is pure left wing denier pretext, and completely inappropriate. It insults, we are naive children buying any excuse. Those who bring it up, never, never, ever mention the 17,000 extra-judicial executions that take place. Why? Those are done by the client of the lawyer, and provide lawyer jobs.

At some points, the liars and deniers in the lawyer hierarchy will be held to account. Because they have the ultimate responsibility for the failure of the government to protect the public, they should be arrested, tried for an hour, and summarily executed for their treason. The texts of their judicial decisions would be the sole evidence, and not any evidence of any gotcha, collateral corruption.

"There are also certain situations where the death penalty may be morally required to prevent the taking of an innocent life."

Huh?

Posted by: John K | Jan 25, 2010 8:12:18 AM

I am in agreement with Brown's primary point, but there are several problems/omissions with Brown's article and Doug's analysis of it.

First, it is not California's "inability" to execute, but its unwillingness. Virginia executes in 5-7 years after sentencing, has executed 65% of those sentenced to death, with 15% of their death row cases overturned on appeal. The national averages are about, 11 years, 13% and 37% respectively. It is not by accident, that California is in a completely different universe.

Secondly, the cost issue goes away, if a responsible protocol is adopted and carried out.

Thirdly, jurors or judges provide for a death penalty, just as they do all other sanctions, because they find it the most just and appropriate of the applicable sanctions for the crimes. The California system intentionally short circuits the will of the sentence provider. The rational question is will California ever allow a responsible system for the death penalty? The de facto LWOP system which exists in death penalty system has nothing to do with safety issues, per se, but with a system that is determined to undermine a legally invoked sanction.

Fourthly, death penalty is inherently more protective of innocents, because of enhanced due process, enhanced incapacitation and enhanced deterrence.

Fifth, The ALI anti-death penalty report is really the report of two individual anti death penalty activists, the brother/sister Steiker, who happen to be law professors. The content of the report was likely decided prior to them being assigned this task. Or, put another way, who ever assigned the Steiker's knew what the report was going to say, the moment it was decided who the authors would be. Any rational anti dper knows that just as any credible pro death penalty expert could/will rip the report to shreds.

Sixth, with very rare exception, the death sentences given in California were fairly and justly provided. Few doubt the death penalty has due process protections superior to all other sentences. What Brown said was that the death penalty could not "always" be applied in a fair and just manner. No sentencing scheme can "always" be applied perfectly and that is no reason to get rid of any sentencing scheme that is applied by humans. It is, however, a good reason to have an appellate system and executive branch functions, that both provide relief.

Based upon perspective, I think a more convincing argument is that the California system is, currently, unjust and unfair in overturning many death sentences and in providing a death penalty protocol that intentionally increases delay and costs, as a systemic method to destroy a law that the minority does not approve of, but that the majority consistently votes to continue.

It is a west coast version of New Jersey/Pennsylvania.

Posted by: Dudley Sharp | Jan 25, 2010 9:52:47 AM

mpb--

I agree with most of your sentiment, but you bite your own critique with your disparagement of the "recent" Christian "amendment" of the commandment.

There is substantial evidence that the earliest ancient Hebrew texts are more properly read as "thou shall not murder," not "thou shall not kill." And this makes some degree of sense, given that much of the same books are filled with killing for purportedly justified reasons. The Old Testament repeatedly refers to righteous wars and extra-judicial death sentences against golden calf worshippers. In fact, Leviticus specifies the death sentence for damn near everything (including wearing clothing of two different fibers, which oddly enough has not caused Pat Robertson to call for the elimination of cotton-polyester blends), which leads one to suspect that capital punishment is acceptable under the Old Testament.

Of course, your tobacco-spitting King-James bible thumper probably is not aware of any of this, but nonetheless, if we're going to keep the debate from devolving into simplicity, we need to check our rhetoric on all sides.

Posted by: Res ipsa | Jan 25, 2010 11:40:45 AM

mpb, CoimProfBlog has mucho articles about DNA (and the lack of DNA) with some about the California Innocence Project.

"First, it is not California's "inability" to execute, but its unwillingness."

California doesn't have any "unwillingness" to execute. The primary reason for the long delays between conviction and execution in California is the lack of attorneys for death row prisoners and the length of time appeals take. Right now, most death row prisoners wait around 5 to 7 years just to get an attorney appointed to handle the appeal. The appeals then take another 10 years or so from appointment to decision. Then comes habeas proceedings. Then come federal habeas proceedings.

The only way to solve this problem is paying more attorneys to take DP cases. For a state that's perpetually in the red, that's not politically realistic. Where would you suggest getting the money from?

"Secondly, the cost issue goes away, if a responsible protocol is adopted and carried out."

Which "responsible protocol" is that?

"Based upon perspective, I think a more convincing argument is that the California system is, currently, unjust and unfair in overturning many death sentences and in providing a death penalty protocol that intentionally increases delay and costs, as a systemic method to destroy a law that the minority does not approve of, but that the majority consistently votes to continue."

The California Supreme Court has the highest DP affirmance rate in the country. Maybe you're talking about the Ninth Circuit overturning death sentences, but relief even there is very rare. So what "overturning" are you talking about?

Your conspiracy theory about who's keeping the California death penalty system from working needs a little more work itself.

Posted by: arx | Jan 25, 2010 4:06:36 PM

ARX:

We disagree.

First, any state, where judges take, 5-7 years, on average, to appoint an attorney to handle appeals in death penalty cases, is a state with judges unwilling to enforce the law and with Ca, also unwilling to execute.

Secondly, Virginia carries out executions in 5-7 years - the same amount of time it takes Ca to assign appellate counsel, has executed 65% of those sentenced to death and has an overturning rate of 15% in death penalty cases.

Any state could have a protocol whereby the average time to final dispostion in death penalty cases averaged 8 years However, you have to have judges willing to work with that system. 1 year to prepare the first round of writs and appeal and then 7 years in state and federal court. On average, why is that not reasonable?

ARX, we know Ca doesn't have a shortfall in attoneys. In fact, at first you say that's the problem and then you say more money will make that go away. Which is it? Too few attorney's or attorneys that want more money? We know it is not too few.

Of course the overturning rate in Ca is relatively low, because it is almost impossible to get a case fully through the system. We may disagree on which cases should have been overturned.

However, my primary point is the unwillingness to execute, which is based upon the very low rate of execution, which is based upon the irresponsibly long appellate process, controlled, in large measure, by the judiciary.

My contention is that "it's the judges, stupid" (not directed at you).

For example, I think Kansas has nearly a 100% rate of overturning such cases, New Jersey judges would never allow an execution, Pennsylvania judges only allow for volunteer executions, etc. A Connecticut federal judge did all he could to stop a volunteer execution in Ct, the only modern day execution in Ct.

All these states have enough lawyers, as does Ca. They all have constitutional death penalty statutes. The difference is the judges. That is why there is such huge variation in overtuning rates and in executions.

Some judges don't like the death penalty and they stop it or delay it until after natural death, a common appellate outcome in Ca, at least more common than execution.

Judges in some cases are just bit more subtle than Rose Bird. When looking at execution rates, from state to state, it appears obvious that "it's the judges".

The exception may be New York, which had an unconstitutional statute, as Scheidegger pointed out, BEFORE it became law, if I recall correctly.

Posted by: Dudley Sharp | Jan 27, 2010 6:14:11 AM

Dudley Sharp said, "Thirdly, jurors or judges provide for a death penalty, just as they do all other sanctions, because they find it the most just and appropriate of the applicable sanctions for the crimes."

That's not so. The applicable statutes and jury instructions do not provide for jurors to recommend "the most just and appropriate sanction," nor is that the question the sentencing judge must answer. California's death penalty scheme is far more ugly and complicated than that. The actual procedure is comical in the way it confuses jurors and tragic in the way it shortchanges defendants out of consideration of factors that are ostensibly relevant. And the statute's list of special circumstances is startling in terms of the breadth of crimes it can apply to. How does California's scheme "meaningfully narrow" the class of first-degree murders for which one can be sentenced to death?

Posted by: punchy | Jan 28, 2010 7:17:09 PM

Punchy, my wording was intentionally broad.

I thought it was understood, as it is a constant, that

"Thirdly, jurors or judges provide for a death penalty, just as they do all other sanctions, because they find it the most just and appropriate of the applicable sanctions for the crimes." AS BASED UPON THE LAW AND THE FACTS, INCLUSIVE OF ALL JURY INSTRUCTIONS AND THE APPLICABLE SANCTIONS IN THAT CASE.

I didn't write the CAP words, originally, because that should have been understood as a constant in any legal case.

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